Fontenot v. Great Am. Indem. Co.

• Decision Date: 06 March 1961
• Docket Number: No. 203,203
• Citation: 127 So.2d 822
• Parties: Morris C. FONTENOT, Plaintiff-Appellant, v. GREAT AMERICAN INDEMNITY COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 822

127 So.2d 822

Morris C. FONTENOT, Plaintiff-Appellant, v. GREAT AMERICAN INDEMNITY COMPANY, Defendant-Appellee.

No. 203.

Court of Appeal of Louisiana, Third Circuit.

March 6, 1961.

Rehearing Denied March 29, 1961.

McGee & Soileau, by Daniel J. McGee, Mamou, for plaintiff-appellant.

Lewis & Lewis, by John Shaw, Opelousas, for defendant-appellee.

Before SAVOY, TATE and CULPEPPER, JJ.

CULPEPPER, Judge.

On May 10, 1960 plaintiff filed this workmen's compensation suit alleging that he is totally and permanently disabled as the result of a back injury sustained while in the course and scope of his employment with G. J. Deville Lumber Company on August 14, 1958 at which time the defendant, Great American Indemnity Company, was the workmen's compensation insurer for said employer. Plaintiff alleges that at the time of said accident he experienced an acute burning pain in the lower back which became progressively more severe, requiring him to seek medical aid and to be hospitalized on August 17, 1958 for a period of six days. Petitioner alleges further that despite his injury and because he desired to continue working for his employer, with whom he had been employed for over eleven years, he returned to work for said employer approximately three months after the said accident; that on or about May 18, 1959 while working for the same employer and more particularly while shoveling gravel into a truck petitioner suddenly experienced a burning sensation in the region of his back injured on August 14, 1958 as aforesaid; that he again received medical treatment and performed no heavy manual labor for approximately three months after the incident of May 18, 1959, and that although he was still suffering pain in his back he returned to work for his employer on or about September 5, 1959 and attempted to perform light duty work until October 2, 1959 when his pain became so severe that he had to discontinue performing manual labor altogether. Plaintiff alleges that although he does not know the exact nature of his back injury he believes that his present total and permanent disability 'stems from the accident which occurred on or about August 14, 1958, and that petitioner's injury developed into total and permanent disability to perform his usual and customary work on or about May 18, 1959,' (when he reinjured his back shoveling gravel).

To this petition defendant filed what he denominated in the heading as an 'Exception of No Right of Action' but in the first paragraph of said exception he states that the plaintiff has 'no right or cause of action' because the plaintiff in proceedings entitled 'Morris Fontenot versus C. J. Deville Lumber Company and Consolidated Underwriters' bearing Number 12817 on the docket of the Thirteenth Judicial District Court, accepted a court approved compensation settlement for the same total and permanent disability for which he is now suing herein and, therefore, is not entitled to recover for the same injuries again. The defendant also filed an exception of prescription alleging that from the face of the petition it is apparent that more than one year has elapsed since the date of the injury which is alleged to be the cause of disability. The lower court sustained the exception of prescription from which judgment plaintiff has appealed. The trial judge did not rule on the exception of 'no cause or right of action'.

Addressing ourselves first to the exception of prescription we find that although no testimony was taken at the hearing thereof the defendant did file in evidence a certified copy of those certain proceedings entitled 'Morris Fontenot versus G. J. Deville Lumber Company and Consolidated Underwriters' hearing Number 12817 on the docket of the Thirteenth Judicial District Court, in which proceedings the plaintiff and the defendants therein joined to petition the court's approval of a compromise settlement of a workmen's compensation claim. The petition in those proceedings contains the following allegations:

'The employee contends that on August 14, 1958, while acting in the course and scope of his employment with G. J. Deville Lumber Company, he sustained a back injury while lifting a keg of nails and that although he returned to work for the employer, he was performing his work with some difficulty until May 18, 1959, while shoveling gravel into a truck, he twisted and hurt his back and he further contends that as a result of both of said accidents, he was rendered totally disabled and unable to perform his usual and customary work since May 18, 1959, and therefore, the employer, G. J. Deville Lumber Company and Great American Insurance Company, the compensation insurer of the said employer at the time of the first accident in August of 1958, as well as Consolidated Underwriters, the Workmen's Compensation Insurer of the employer at the time of the accident of May 18, 1959, are liable to him in solido for compensation at the rate of Twenty-Six and No/100 ($26.00) Dollars per week for four hundred (400) weeks, together with all medical expenses and charges whatsoever.'

For purposes of consideration of the exception of prescription the facts consist of those which have been alleged in plaintiff's petition in the instant suit together with those which have been alleged in the petition for compromise settlement, the pertinent portion of which has been quoted above. In support of this exception defendant first calls our attention to LSA-R.S. 23:1209 which deals with prescription in workmen's compensation cases and reads as follows:

'In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.'

It is the contention of the defendant that in this case the injury developed on the same day as the accident, August 14, 1958, because on that very date the injury manifested itself by causing pain in petitioner's back to the extent that three days later he sought medical attention and was then hospitalized for six days, continued under the care of a physician for almost three months and then returned to work despite the fact that he was still having pain. Defendant argues that this was not a latent injury which later developed disabling symptoms but rather that it was an injury which manifested itself immediately and that under these facts prescription started on the date of the first injury and having once started it cannot be interrupted or suspended by plaintiff's later return to work. The defendant cites Spano v. Orleans Manufacturing Company, La.App., Orleans 1958, 100 So.2d 899 as authority for the proposition that where the seriousness of a known injury manifests itself immediately the prescription of one year begins to run as soon as the claimant is disabled to the extent that he leaves his employment.

The plaintiff on the other hand contends that the present case comes within the doctrine of the landmark case Mottet v. Libbey-Owens-Ford Glass Company, 1952, 220 La. 653, 57 So.2d 218, and its progeny, Johnson v. Cabot Carbon Company, 227 La. 941, 81 So.2d 2; Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522 and Brewster v. City of Shreveport, La.App., 108 So.2d 801.

In the Mottet case, supra, the plaintiff, a glass cutter, injured his back on January 27, 1946. On that same day he consulted his physician who diagnosed his condition as neuritis so he continued to work but during his regular vacation in September of 1946 he was examined by an orthopedic specialist who found symptoms of a ruptured intervertebral disc. On his return to work plaintiff was changed from cutting heavy glass to work on light glass which did not require so much heavy lifting. He continued this work until March 11, 1947 when his condition became so painful that he was forced to quit work and thereafter remained totally and permanently disabled. On writs the Supreme Court reversed the judgment of the Court of Appeal which had sustained a Plea of Prescription of one year and held as follows (220 La. 653, 57 So.2d 219):

'The plaintiff contended that his case came within the exceptions provided in Section 31 of Act 20 of 1914, as amended, LSA-R.S. 23:1209, 'where the injury does not result at the time of, or develop immediately after the accident, the limitations shall not take effect until the expiration of one year from the time the injury develops'. * * * From the very wording of this amendment, an employee who receives an injury flowing from an accident that later develops into disability is excepted from the general rule and his right of action is not perempted until one year after the injury has developed. In this case the injury did not develop into total disability until March 11, 1947, at which time the plaintiff could no longer pursue his trade as a glass cutter. For us to say that he was disabled to perform the duties of his trade prior to that time would be mere conjecture on our part because he had, in fact, continued to perform the duties of his trade until that date. His suit was filed on August 4, 1947, a short time after he became disabled, and within a year from that time. Such being the case the plaintiff's suit was timely filed and the plea of peremption cannot be...